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DMCA protections do not apply to pre-1972 sound recordings, court rules

The decision could have widespread ramifications for online music-sharing sites

The Digital Millennium Copyright Act (DMCA) has shielded many a website from copyright infringement claims (YouTube, we’re looking at you). But its protections do not extend to pre-1972 sound recordings, a New York state appeals court ruled on Tuesday.

The decision came as part of a lawsuit that Universal Music Group (UMG) filed against the online music-sharing service Grooveshark. UMG argued that Grooveshark violated copyright laws when it allowed users to share unlicensed music—such as “Johnny B. Goode” and “My Girl”—which were recorded before 1972.

In its defense, Grooveshark invoked the DMCA, which includes a safe harbor provision that shields online service providers from liability for infringing content posted by third-parties, provided that the websites immediately remove the offending material when notified of the infringement.

But the Appellate Division, First Department rejected this defense, overturning a lower court’s decision in the process. The appeals court noted that the DMCA was passed as an amendment to the Copyright Act, which was changed in 1971 to extend to sound recordings. At the time of that 1971 amendment, the Copyright Act specifically stated that any sound recordings produced before Feb. 15, 1972 fell under state or common-law copyright protections, not federal copyright law.

Because the text of the DMCA does not explicitly extend its protections to these earlier recordings, the appeals court ruled, Grooveshark’s “safe harbor” defense did not apply. “[I]t would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this court to do so by fiat," the court wrote.

A lawyer for Escape Media Group, Grooveshark’s parent company, told Thomson Reuters that the decision will “significantly undermine the safe harbor protections of [DMCA]” and that the company plans to appeal. The appeals court ruled only on Grooveshark’s affirmative defense, not the underlying lawsuit.

For more InsideCounsel coverage of copyright infringement issues, see:

Megaupload: U.S. deceived court about pirated files

Woman to pay $9,250 per song in file-sharing case

Japan introduces harsh punishments for music-file sharing

Judge tosses Viacom copyright suit against YouTube for second time

Alanna Byrne

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